Tag: SCOTUS

Lack of Deep Thinking = Belief in the Living Constitution?

In a twist on the “lack of deep thinking” idea, part of what might be going on in Sotomayor’s head—why she keeps answering questions about judicial philosophy with reference to precedent rather than constitutional first principles is because she’s not an originalist. How can we hope for her to tell us her understanding of the meaning of the constitutional text, after all, if that text’s meaning changes with the times?

For example, Stuart Smalley Al Franken asked Sotomayor point blank, “do you believe the right to privacy includes the right to have an abortion?” The nominee began here response with: “The Court has said….” That is, it is not the Constitution—whatever your view of it may be, whether you think it contains a right to abortion or not—that is the supreme law of the land, but what nine black-robed philosopher-kings say. Of course, if your (non-)theory of constitutional interpretation is to keep “improving” the document—and to keep one step ahead of public opinion, so judges can effect social “progress”—then it’s irrelevant what the Constitution said before the Supreme Court put its gloss on it.

And if you subscribe to this “living Constitution” or “active liberty” theory, then naturally the life experiences of a “wise Latina,” along with lessons from foreign and international law—which, Sotomayor said as recently as her April speech to ACLU, get a judge’s “creative juices flowing”—are all valid parts of your jurisprudential toolkit.

CP Townhall

Sotomayor Waffles on Property Rights

The hearing began after lunch with Senator Grassley probing Sotomayor’s views on Kelo v. New London and the Fifth Amendment’s protection of property right—one of the questions I would ask her. The nominee apparently thought the senator (who’s not a lawyer) needed a lesson in what went on in Kelo and how the Court ruled. Grassley, having been briefed by counsel, didn’t seem to care for that, pushing Sotomayor on whether she thought Kelo was correctly decided and how she views constitutional property rights generally.

Sotomayor said Kelo was a judgment of the Court that she accepts, but that any future case she would have to judge on its own merits. Well, of course, but that wasn’t the question on the table. Exasperated, Grassley asked Sotomayor whether a taking with no compensation would be constitutional. The “wise Latina” couldn’t formulate a proper response, smiling and explaining that what constitutes a “taking” is subject to legal analysis. Well, yes, but that still doesn’t answer the question. Finally, Sotomayor concluded that if a taking violated the Constitution, she would have to strike it down.

In short, according to Sotomayor, if something is unconstitutional, a judge can’t allow it. The technical term we lawyers use for this kind of sophisticated reasoning is “circular”—with the judge here getting to decide based on no discernible criteria whether something is constitutional. For more on the outrageous takings Judge Sotomayor has allowed, see George Mason law professor Ilya Somin’s analysis of the Didden v. Port Chester case. (Somin, also a Cato adjunct scholar, will be testifying at the hearings later this week.)

Update: Sotomayor and “Secret Law”

Sotomayor didn’t have much to say in response to Senator Feingold’s inquiries regarding national security law and civil liberties post-9/11, but the Wisconsin lawmaker’s questions about “secret law”—on which he didn’t press the nominee’s non-answers—made me think of the following: Both Ricci (the infamous firefighters race discrimination case) and Didden were “unpublished” summary dispositions.

If Sotomayor had not been nominated to the Supreme Court, causing hundreds if not thousands of lawyers to comb through her judicial opinions, would anyone have uncovered these blatant attempts to sweep controversial legal issues under the rug?  Are Ricci and Didden Sotomayor’s secret law?

CP Townhall

Citizens United Case to Be Reargued in Supreme Court

The U.S. Supreme Court has decided not to decide in its current term the campaign finance case, Citizens United v. Federal Election Commission. Instead, the Court issued an order that the case should be reargued. The parties in the reargument should address the question of whether the Court should overrule two of its earlier decisions. In the Austin v. Michigan Chamber of Commerce, the Court held that state legislatures may prohibit spending by businesses on electoral speech. In McConnell v. Federal Election Commission, the Court validated limitations on electoral speech in McCain-Feingold.

The Court could have decided Citizens United on relatively narrow grounds. Instead, it has explicitly drawn into question two of its precedents upholding limitations on political speech. It seems likely that five members of the Court are prepared to overrule both precedents, but at least one justice was unwilling to do so without a formal argument.

We appear to be on the brink of a significant liberalization of campaign finance law.

For more on this important case, see below:

Fixing Detention

The Obama administration performed another Friday afternoon Guantanamo news dump last week, indicating that it will probably maintain administrative military detention of combatants under a forthcoming executive order.

This is unnecessary executive unilateralism. As Benjamin Wittes and Jack Goldsmith point out in today’s Washington Post, this is a debate that ought to be held in Congress.

This would not be a tough push for Obama. The Obama administration already amended its claim of authority in a filing with the District Court for the District of Columbia, the judicial body sorting through the detainees remaining at Gitmo. Convincing Congress to ratify this decision should not be hard; the differences between the Bush administration’s “enemy combatant” criteria and what the Obama administration defines as “substantially supporting” Al Qaeda and the Taliban are minute. As I wrote in a previous post on detention definitions and decisions, the actions proscribed under these two standards and the activities constituting the “direct participation in hostilities” standard used in the case of Salim Hamdan are nearly identical.

The only positive news about the pending announcement is that the creation of a national security court specializing in detention decisions is probably not in the cards. As I have said before, national security court proposals play the propaganda game the way terrorists want to and often revive the prospect of domestic preventive detention of terror suspects, to include American citizens who would otherwise be charged with a substantive crime for domestic acts. The Cato Institute filed an amicus brief opposing this practice in the Padilla case.

The Ricci Ruling: A Victory for Merit over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

Supreme Court Rules on Ricci v. DeStefano

In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.

The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.

The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.

As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.

Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.

Who’s Blogging about Cato

Here’s your weekly roundup of bloggers who are writing about Cato research and commentary:

  • Insider Online blogger Alex Adrianson covers Cato’s standoff with Hugo Chavez supporters and government agents during a pro-free market conference in Venezuela.
  • Writing for Real Clear World’s Compass blog,
  • At Red State, Ryan Ellis uses Michael Cannon’s research in a post about a market-based alternative to government-run health care.

Let us know if you’re blogging about Cato via cmoody [at] cato [dot] org (email )or Twitter.

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